GLAA to Ambrose: Please remove Section 905 of proposed ABC regs

Chairperson Sharon Ambrose
Committee on Consumer and Regulatory Affairs
Council of the District of Columbia
1350 Pennsylvania Ave, NW
Washington, DC 20004

Dear Councilmember Ambrose:

The ABC Board has published proposed regulations in the October 10, 2003
District Register. GLAA strongly objects to the inclusion of Section 905 in the
regulations.

As clearly stated by the ABC Board in their introduction, "The purpose of the
proposed rules is to implement conforming regulations to carry out the
provisions of D.C. Law 13-298, the Title 25, D.C. Code Enactment and Related
Amendments Act of 2001, which took effect on May 3, 2001."

However, there is no section of the law which in any way relates to Section
905.

905. PROHIBITED CONDUCT ON LICENSED PREMISES

905.1 No holder of an alcoholic beverage license shall require or
permit any entertainer, employee, customer, or other person to do any of
the following on its premises:

(b) Fondle the breasts, buttocks, anus, or genitals of any other person.

905.2 No holder of an alcoholic beverage license shall permit any person
who engages in any of the acts prohibited by § 905.1 to remain on the
licensed premises.

In addition to the improper inclusion of this regulation over the Council's
intent in enacting the law, this section is on its face unconstitutional in two
ways.

First, most hotels in DC have liquor licenses for their in house bars and
restaurants. Each of these establishments would be required to prohibit any
guests from performing any of the listed sexual acts even in their locked
rooms. This is a clear violation of the constitutional right to privacy as
unequivocally established earlier this year by the U.S. Supreme Court in
Lawrence v. Texas.

The ABC Board is attempting through Section 905 to re-criminalize sodomy and
other completely legal and constitutionally protected activities. DC's
community undertook a sustained campaign for 30 years to repeal the sodomy law
led by Dr. Frank Kameny. This must not be reversed in this obviously
unconstitutional section.

Second, most of our theaters also have liquor licenses. Plays and other live
performances often call for the fondling of breasts or buttocks of themselves
or other actors. These performances are strictly protected by the First
Amendment of the U.S. Constitution. The very existence of this section creates
an impermissibly chilling effect on theater and other live performances.

The job of the ABC board is to regulate the sale of alcohol, not to enforce
their own code of morality. We already have laws such as Section 22-1312 Lewd,
Indecent or Obscene Acts; Section 22-2201 Certain Obscene Activities and
Conduct Declared Unlawful; Section 22-2713 Prostitution, Pandering; and Section
22-3101 Sexual Performance Using Minors, which more than adequately serve the
purpose of regulating public and commercial sex.

Section 905 is unnecessary, unconstitutional and at odds with the stated
purpose of the regulations to implement the law. The Council should delete it
in its entirety.